Freedom of speech in the public employment arena presents a double-edged sword; on the one hand, freedom of speech is one of the most cherished values that undergirds the proverbial marketplace of ideas in a university setting but can also cause a public university to wade into a thicket of unsettled case law when it comes to denying tenure or otherwise undertaking any type of adverse employment action against an outspoken faculty member.
A major defense available to most public employers in a First Amendment retaliation case is the so-called “Garcetti defense.” In Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court held that when public employees engage in speech as part of their official duties, such speech is not protected by the First Amendment. This happens, for example, when a high school department chair makes an internal complaint about school curriculum. See Schulz v. Commack Union Free Sch. Dist., No. 21-CV-5646-RPK, ––– F.Supp.3d ––––, ––––, 2023 WL 2667050, at *7 (E.D.N.Y. Mar. 28, 2023).[1]
In 2006, the Supreme Court’s decision in Garcetti v. Ceballos granted public employers’ broad discretion in regulating their employees’ work-related speech.[1] Before 2006, under the so-called Pickering Connick test, employees who were speaking as citizens about “matters of public concern” were only subject to limited restrictions when the government employer’s interest in effective workplace operations outweighed the employee’s free speech rights.[2]
The Chronicle has reported in the recent past about a division of views within the AAUP as to its proper focus. In 2012, a slate of officers running under the “AAUP Organizing for Change” banner won election fairly handily (although only about 10% of the AAUP’s membership actually voted). At the time of that election, a former AAUP Staff member described the election outcome as affecting “to a large extent, whether the association remains anchored principally to its commitment to the profession and its standards and principles or becomes an organization principally focused on a particular means—unionization—of achieving these objectives." This past February a slate of challengers, seeking to return AAUP to its traditional focus instead of a unionization focus, looked to unseat the “Organizing for Change” leadership. At that time, The Chronicle reported on an interview given by Rudy H. Fichtenbaum, the “Organizing for Change” candidate running for re-election as the AAUP’s president, in which he was said to have described “the real choice before the AAUP membership [as] whether the association would continue to build a national network of activist chapters or retreat into being a group focused on running a Washington office that weighs in on few controversies each year.” Mr. Fichtenbaum was quoted as saying, “Our emphasis has totally been on organizing people.” The election results were just reported and all four top spots will continue to be held by the “Organizing for Change” incumbents. Although Mr. Fitchtenbaum’s election was close, winning with just under 52% of the vote, the other candidates on that slate won more handily. Despite all of the controversy, however, only 4,433 valid votes were cast, out of a total membership of about 47,000. So it is hard to draw too many conclusions about what these results actually reflect within the full academic community. Nonetheless, it seems safe to assume that this latest victory will be viewed as a “mandate” by the “Organizing for Change” leadership to continue, and perhaps even increase, AAUP’s focus on unionization. Historically, this may not have had meant much for private colleges and universities. Since the U.S. Supreme Court’s 1980 decision in NLRB v. Yeshiva University, which held that in the traditional higher education setting, faculty are “managerial” employees not eligible for unionization under the National Labor Relations Act, the full time faculty at most colleges and universities have not had the legal option to unionize. However, the Obama National Labor Relations Board – at full strength for the first time in a decade -- has been actively overturning a host of NLRB precedents and established practices which collectively increase the likelihood of union organizing. These changes have occurred against the backdrop of declining unionization – organized labor represents only about 6.7% of American workers in the private sector, which is near its all-time record low. While the NLRB does not have the authority to simply “overturn” a Supreme Court decision, the Yeshiva decision requires a very fact specific application. As a result, the NLRB may have room to “interpret” Yeshiva in a different way going forward, while still utilizing the framework of the Court’s analysis. The NLRB clearly has signaled its intention to consider that course of action. Recently, in connection with its review of a faculty election issue involving Pacific Lutheran University, the NLRB has invited interested parties to submit briefs on a number of issues related to its application of Yeshiva, including:
Which of the factors identified in NLRB v. Yeshiva University, 444 U.S. 672 (1980), and the relevant cases decided by the Board since Yeshiva are most significant in making a finding of managerial status for university faculty members and why?
In the areas identified as “significant,” what evidence should be required to establish that faculty make or “effectively control” decisions?
Are the factors identified in the Board case law to date sufficient to correctly determine which faculty are managerial?
If the factors are not sufficient, what additional factors would aid the Board in making a determination of managerial status for faculty?
Is the Board’s application of the Yeshiva factors to faculty consistent with its determination of the managerial status of other categories of employees and, if not, (a) may the Board adopt a distinct approach for such determinations in an academic context, or (b) can the Board more closely align its determinations in an academic context with its determinations in non-academic contexts in a manner that remains consistent with the decision in Yeshiva?
Do the factors employed by the Board in determining the status of university faculty members properly distinguish between indicia of managerial status and indicia of professional status under the Act?
Have there been developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors theBoard should consider in making a determination of faculty managerial status? If so, what are those developments and how should they influence the Board’s analysis?
As suggested in the Yeshiva decision, are there useful distinctions to be drawn between and among different job classifications within a faculty--such as between professors, associate professors, assistant professors, and lecturers or between tenured and untenured faculty--depending on the faculty's structure and practices?
Changes in how the NLRB applies the Supreme Court’s Yeshiva decision, coupled with an AAUP more inclined to pursue union organizing, could lead to some very interesting developments for private colleges and universities in the next year or so. Stay tuned.
After what seemed like a small lull in NLRB activity impacting Higher Education, the National Labor Relations Board has once again signaled potentially significant alterations to the legal landscape.
Just last week, the NLRB issued an “invitation” to file briefs in a case involving Pacific Lutheran University. This specific case involves the interplay between organizing rights (in this instance for adjunct faculty) under Section 7 of the National Labor Relations Act and the Religious Clause of the First Amendment, which in 1979 the Supreme Court held in NLRB v. Catholic Bishop of Chicago precludes the NLRB from becoming entangled in religious issues (in that case the Court held that the NLRB could not require a union election among lay teachers at a Catholic school).
This “invitation” asks interested parties to address the appropriate test that the Board should apply under Catholic Bishop and to identify factors it should consider in determining the appropriate standard for asserting jurisdiction.
But the invitation goes much further than this question which is only of significance to religiously affiliated institutions. The underlying Pacific Lutheran University case also includes a claim that the University’s adjunct faculty are managerial under NLRB v. Yeshiva University because, among other things, there are adjuncts who are voting members of the University’s Faculty Assembly, along with their tenured and tenure track faculty. The invitation, therefore, also requests interested parties to identify those factors that the Board should consider most significant in making a managerial determination, as well as what evidence should be required to establish that faculty “effectively control” decisions. In particular, the Board has solicited information on whether there have been “developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors the Board should consider in making a determination of faculty managerial status?”
What is the significance of this invitation? It likely signals some significant changes in the near future. The fact is that unless the Board were inclined to consider some dramatic moves in these two areas, it would not have needed (or wanted) to solicit briefs on these issues. Stay tuned - given the recent history of this Board, significant change is almost certainly on the horizon.
In the private sector, most full-time (tenured/tenure track) faculty are currently considered “managerial” under the National Labor Relations Act (“NLRA”), making them ineligible for the protections of the NLRA, including the right to organize and bargain collectively. (Managers and supervisors are not considered “employees” under the NLRA.) Managerial status does not preclude an institution from voluntarily recognizing a faculty union, but it does prevent faculty from compelling a unionization vote under the NLRA. At the risk of oversimplifying, what makes most private sector full-time faculty managerial is their shared governance role. Adjuncts, or contingency faculty, on the other hand are often not included in the shared governance model. The Chronicle recently reported on a study presented at this year’s Association for the Study of Higher Education (“ASHE”) annual conference on adjuncts and shared governance. According to The Chronicle’s report, the Study examined more than 100 research universities in an attempt to quantify adjuncts’ involvement in governance. The Study found that at about two-thirds of the institutions studied, faculty senates were off-limits to adjunct instructors who had less than half the workload of a full-time faculty member. The remaining one-third of institutions were about evenly split between those whose faculty senates were more open to adjuncts and those whose senates were more restrictive in terms of access for adjuncts. Interestingly, these results are inconsistent with AAUP’s view, reflected in a report issued in late 2012 which recommended that eligibility for voting or holding office in shared-governance bodies should be the same for all faculty, regardless of their full-time or part time status. Because adjuncts, who along with others who constitute the “contingent” faculty that now comprise perhaps as much as 75% of higher education teaching ranks, do not participate in shared governance, they generally are not considered managerial under the NLRA. As a result, they are entitled to compel unionization through the National Labor Relations Board’s election procedures. And over the past several years, adjuncts at a number of institutions have actively pursued this path, often with a fair degree of success. For example, when adjuncts at Georgetown University voted to unionize this past May with SEIU Local 500, it purportedly raised the number of adjuncts in the District of Columbia organized by Local 500 to more than 75% (including adjuncts at previously organized American University, George Washington University, and public Montgomery College) . The potential long term impact of achieving this level of “density” success across all of D.C. is apparent. More recently, a similar "regional" approach was started by SEIU in Boston. Operating under the name Adjuncts Action, adjuncts at Tufts University voted to unionize this past September, and unionization efforts are underway at Northeastern University and Lesley University. This effort suffered a setback in late October when adjunct faculty at Bentley University in Boston voted 100-98 against unionization. (Objections to the election outcome have been filed and are pending.) Despite this setback, the trend appears clear and institutions should expect efforts to organize adjunct faculty will continue, and likely expand, across the country. While there are a number of factors that undoubtedly contribute to adjuncts’ interest in organizing, and economic factors are often prominently noted, in reality experience suggests that it may often be non-economic factors that ultimately drive the outcome. As with any other employee group, non-economic factors are often as important as economic factors when it comes to unionization. In this context, the more critical question may be how are adjuncts treated on their campuses? Are they welcomed and received by the rest of the campus community as important contributors to the overall mission, or not? Ironically, it can often be their relationship with their full-time colleagues that creates a tension and feeling of disrespect (or at least insufficient respect) which is a contributing factor in unionization decisions. In other words, an interest in securing an institutional voice like their full-time colleagues may drive the outcome as much as anything else. As noted, at most institutions examined in the ASHE Study, adjunct involvement in shared governance is limited and that voice does not exist. Yet, at least one faculty study has concluded that involvement in meaningful shared governance may be a more important indicator of faculty satisfaction than economic factors. There is little reason to think this conclusion is not as relevant for contingent faculty as it is for full-time faculty. The moral? Institutions should consider promoting the involvement of their adjuncts in governance matters. Not only may it result in more satisfied adjuncts, but it might also impact their status as possibly "managerial" members of the institution.
The Chronicle has 